Ethan INvestments Limited v Gabrielle's Trustee Comany

[2005] NZHC 1839

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2004-404-3030

IN THE MATTER OF     The Unit Titles Act 1972 AND

IN THE MATTER OF     Body Corporate No. 319327

BETWEENETHAN INVESTMENTS LIMITED & OTHERS

Plaintiff

AND  GABRIELLE’S TRUSTEE COMANY

First Defendant

ANDTOTAL PROPERTY ADMINISTRATION LIMITED

Second Defendant

Hearing:         11 February 2005 Appearances: R Ferguson for Plaintiffs

M Colthart for Defendants Judgment:  18 February 2005 at 12.50 pm

COSTS JUDGMENT OF ASSOCIATE JUDGE SARGISSON

E-mail:

R Ferguson – [email protected] M Colthart – [email protected]

Solicitors:

Hesketh Henry, Private Bag 92093, Auckland Knight Coldicutt, Private Box 106-214, Auckland

Ethan INvestments Limited & Others V Gabrielle’s Trustee Comany And Anor HC AK CIV2004-404-3030 [18 February 2005]

[1]                 I have before me the plaintiffs’ application for an order for costs on its successful summary judgment application.

[2]                 It is common ground that the plaintiffs have a prima facie entitlement to costs under the statutory cost regime on a 2B basis. They have provided a schedule of costs calculated on a 2B basis amounting to $6,960.00 plus disbursements of

$1,160.00.

[3]                 However, the defendants advance two reasons for opposing the plaintiffs application and seeking an order that each side bear its own costs:

a)First, the plaintiffs very late amendment to the statement of claim, to incorporate a challenge to r 2.14 of the Body Corporate’s rules. The rule purported to allow the first defendant to exercise the voting rights of all unit holders. Even though the plaintiffs filed an amended statement of claim on the day of hearing, I do not think any prejudice was caused by the late amendment. The rule  clearly placed an issue  in the evidence that was filed and was signalled in the plaintiffs affidavit evidence. The omission to refer to the rule  in the statement of claim was therefore an obvious oversight:

b)Second, the plaintiffs were not successful on the second cause of action in which they sought an order appointing an administrator under s 40 of the Unit Titles Act. The order was sought in the alternative, and only in the event that I should reject the plaintiffs’ first ground for summary judgment. I accept the defendants’ submission that in so far as the application for summary judgment sought the appointment of an administrator, the application was not suitable for summary judgment. The plaintiffs effectively conceded this at the hearing.

[4]                 The result is that I accept that the defendants were put to unnecessary time and cost in responding to the second part of the application for summary judgment.

In the circumstances, although I am not persuaded there should be no order in favour of the plaintiffs, I accept that any order for costs should be significantly reduced.

[5]                 Accordingly I make an order for costs in favour of the plaintiffs. The quantum of the order should be fixed at 50% of the costs sought, namely, $3,480.00. The plaintiffs are also entitled to disbursements in the sum of $1,160.00.

Dated at Auckland on2005 atam/pm.

Associate Judge Sargisson